WONG

Interim Decision #1966




                              MATTER OF WONG

                       In Deportation Proceedings

                                 A-18029197

                   Decided by Board April 30, 1969
Respondent, who was admitted as a nonimmigrant without a visa to proceed
  in continuous transit through the country, who was given ample time to
  do so, which period of time was extended by the District Director, but who
 failed to depart, does not thereafter warrant a grant of voluntary departure in deportation proceedings.
CHARGE :
  Order: Act of 1952   —   Section 241(a) (1) DI U.S.C. 1251(a) (1)1 —Exeluda-
                 .          ble at time of entry—immigrant—no visa.

ON BEHALF OF RESPONDENT:                          ON BEHALF OF SERVICE:
  Joseph F. O'Neil, Esquire                         R. A. Vielhaber
  100 State Street                                  Appellate Trial Attorney
  Boston, Massachusetts 02109                      Thomas W. Gleason
                                                   Trial Attorney


   The proceedings are before us on appeal by the Immigration
and Naturalization Service from the decision of the special inquiry officer finding respondent deportable as charged but granting voluntary departure with an alternate deport order to the Republic of China on Formosa if he did not depart as and when
directed. Counsel for respondent also filed an appeal from this decision, contesting deportability, but that appeal has since been
withdrawn. The Service requested oral argument before the
Board, which took place on March 17, 1969.
  The respondent is a 40-year-old married male alien, a native
and citizen of the Republic of China, who arrived in the United
States at San Francisco on or about May 28, 1968. He was at that
time authorized to proceed in continuous transit through the
United States without a visa and to depart for a foreign port or
place on or ,before June 7, 1968. He failed to depart before that
date. He thus remained in the United States without a visa. The
respondent does not concede that he is deportable but we affirm

                                     240
                                            Interim Decision #1966

 the decision of the special inquiry officer that his deportability is
 shown by evidence that is clear, unequivocal and convincing.
    The Service contends in its appeal that the privilege of voluntary departure should not have been accorded the responent. With
this contention we agree.
    The respondent, in entering the country as a nonimmigrant
 and authorized to proceed in transit through the country without
 a visa, was given ample time, from May 28, 1968 to June 7, 1968,
to do so. After he failed to leave on this latter date, the District
 Director gave him further time, until September 11, 1968, to
 leave. He did not leave before that date, but, on the contrary,
 changed his place of residence without notifying the Immigration
 Service. Although the respondent testified that he had the money
 with which to depart the country, the facts are that he did not
 leave and it appears quite clear now that he had no intention of
 leaving. He obtained gainful employment as a kitchen helper in a
 restaurant and is currently working.
    When an alien is permitted to enter the country as a nonimmigrant without a visa for the purpose of proceeding in continuous
transit through the country and then departing for a foreign port
 or place, the Government is relying upon the alien to abide in
 good faith with the conditions under which he was permitted to
be in the United States, without requiring the institution of deportation proceedings. If he fails in this respect and will not
leave until formal deportation proceedings are started, as did the
alien in this case, we do not feel that a favorable exercise of the
Attorney General's discretion is ordinarily warranted. We have
no confidence that if he were again given the privilege of voluntary departure respondent would take advantage of it.
   We will thus affirm the decision of the special inquiry officer
finding respondent deportable as charged but we will sustain the
appeal of the Service and order the respondent's deportation
without the privilege of voluntary departure.
   ORDER: It is ordered that the appeal of the Immigration and
Naturalization Service from the special inquiry officer's order to
grant the respondent voluntary departure, be and the same is
hereby sustained.
   It is further ordered that the respondent be deported to the Republic of China on Formosa, but if not accepted there then to
Hong Kong.




                                241